Legal formalism

Abstract

This chapter considers the era of ‘legal formalism’, which is usually taken to refer to the period in American legal thought between the 1860s and the 1920s, when a new generation of post-bellum treatise-writers and legal academics sought to discover the underlying principles of common law cases, and put them into a rational order. This period is sometimes also referred to as the era of ‘classical legal thought’. In contemporary jurisprudence, the term ‘formalism’ refers to a specific approach to adjudication and constitutional interpretation, which has its defenders as well as its critics. However, in the era under study, it was neither a term which jurists used to describe themselves, nor one which their critics used to describe them.